Award of ongoing temporary total disability is affirmed when evidence shows that claimant is limited to light-duty work, which employer cannot accommodate.

The IA Board found that the claimant sustained a work-related low back injury on April 4, 2012, and was entitled to ongoing compensation for total disability as of April 23, 2012. The employer argued to the Superior Court on appeal that the Board had abused its discretion by accepting as more credible the testimony of the claimant’s medical expert; had abused its discretion by substituting its opinion for that of the employer’s medical expert; and had erred as a matter of law in finding that the claimant was a displaced worker. The Superior Court rejected the arguments made by the employer on appeal. They found that the Board had properly performed its role and did not abuse its discretion in accepting as more credible the medical testimony of the claimant’s expert. On the displaced worker issue, the court cited the Hoey v. Chrysler Motors Corp. case for the proposition that a displaced employee is one who can work only in a limited capacity or who has been unable to find work within his or her restrictions. The outcome of this issue often turns on whether the claimant has been terminated by the employer or at least notified that no modified work is available. In this case, the court found that the record supported the contention that the claimant could not return to work at her pre-injury job but had a reasonable expectation of employment with the employer since she remained employed with them and had never been told to look for work elsewhere. Therefore, the Board concluded that the claimant was a displaced worker entitled to ongoing compensation.

Case Law Alerts, 4th Quarter, October 2014